Editor's Note: This blog is a summary of our Webinar, How to Optimize your Digital Accessibility Program to Defend against ADA lawsuits, featuring speaker Kara Hilburger, Member, Octillo. It is for educational purposes and should not be considered legal advice.
Digital accessibility is about more than simply ensuring that you have alt text on all of your images and that there are captions on your videos, though those are important, too.
All public-facing aspects of your site must provide “reasonable accommodation,” including your mobile app, your videos, and more. Your privacy and security policies can also play an essential role in your accessibility program.
In this post, we’re going to look at how you can optimize your digital accessibility program to better defend against and prevent ADA lawsuits in 2021.
The Legal Landscape Around ADA Web Accessibility
In the last few years, plaintiffs have filed thousands of lawsuits, citing websites, mobile apps, and even online videos as inaccessible "places of public accommodation." ADA Title III is the basis of these lawsuits.
It doesn’t matter how many employees your business has, how much revenue you make, or even how long you've been in business. All "places of public accommodation," including your public-facing website and apps must be accessible to everyone.
In addition to the ADA, some state laws have driven an increase in accessibility lawsuits, including California’s Uhruh Act and the New York Human Rights law.
The DOJ originally participated in ADA lawsuits, but they stopped doing so in 2017.
Every year since the DOJ's withdrawal from these cases, more ADA digital accessibility lawsuits are filed than the year before it. Lawsuits rose 181% from 2017 to 2018. In 2019, filings for digital accessibility lawsuits in federal court reached a rate of one every working hour.
More than 3,000 lawsuits were filed in 2020, another record-breaking year for litigation.
The Relationship Between Data Security, Privacy, & Digital Accessibility
Have you thought about how privacy, data security, and digital accessibility all overlap? We currently live in a world where phishing schemes and data breaches aren’t out of the ordinary.
There are some state and federal laws, such as HIPPA and the New York Shield Act, that specifically require certain security safeguards as part of the law.
Others, such as California’s CCPA, a comprehensive data protection law, gives consumers certain privacy rights over their data and information, which requires things like cookie disclosures and accessible privacy notices. Accessibility has sometimes been called "the hidden A" in the CCPA. Why?
Attorney Kara Hilburger, Member, Octillo is uniquely qualified to speak about the link between accessibility security and privacy. Kara leads the Accessibility & Privacy Compliance Practice Groups at Octillo. Kara works with businesses in all industries to provide practical and proactive counsel under the Americans with Disabilities Act (ADA), from website remediation recommendations to litigation strategy and defense as well as settlement compliance.
She also advises and counsels corporate clients on a myriad of technology and privacy issues and compliance initiatives. Kara is a Certified Information Privacy Professional, United States (CIPP/US) as certified by the International Association of Privacy Professionals (IAPP).
When speaking about the CCPA, Kara said,
"CCPA requires a business to ensure that all of your privacy notices are reasonably accessible to consumers with disabilities and it further requires businesses follow the WCAG that I talked about 2.1. That's extremely important for businesses to understand. We have a privacy law requiring accessible privacy notices.
It is an important area and I think it just reminds us of why we need to build digital accessibility into all of our platforms as we are navigating this privacy landscape. CCPA is a precursor for data security and privacy. We have a number of other states with similar legislation proposals right now as we speak.”
If your privacy notice is hidden at the bottom of the page where a screen reader may not be able to capture it or your cookie notifications are in pop-ups that screen readers don’t register, your data security and privacy features are no longer accessible.
Every part of your site must be compliant to the ADA. That goes for your site, mobile apps, videos, and privacy and security policies, too.
Based on what she's seen in recent lawsuits, claim letters and settlements, Kara spoke about implementing a standard of WCAG 2.1 AA.
“The majority of the lawsuits being filed and the settlements, the standards that are being referenced in the settlement agreement is WCAG 2.1 level AA. So that's really the baseline level. WCAG 2.1 adds 13 new success criterions to the 2.0.
Six months ago the lawsuits I was involved in focused on 2.0 but we have seen a shift.
To really be working with the WCAG 2.1 level AA. That's the standard I recommend from a compliance and remedial standpoint.”
Why You Need Organizational Support
Top-down organizational support is the best approach for digital accessibility. This ensures that your full digital presence is truly accessible at all touchpoints.
It’s not uncommon for businesses to have different teams handling things like privacy, security, or data accessibility. They’re all seen as separate, even though they are crucial overall.
A broader, more holistic approach to organizational accessibility is recommended. One way to accomplish this is through accessibility champions within your organization, which will ultimately help your digital accessibility initiative succeed. Teach your employees to be vigilant about accessibility, the same way they are taught about digital security.
It's when organizations approach accessibility with a more short-term, siloed approach to accessibility that they may be inclined to leverage accessibility overlays and widgets. It's been well documented that widget and overlay solutions are not supported by the disability community. These "quick fixes" don't deliver an equal experience for everyone.
In the last six months of 2020, plaintiffs started taking legal action against websites using overlays and widgets, filing more than 250 lawsuits.
According to Kara, there has been an explosion of these AI tools in the market. Yet, she cautions against them.
"Overlays and widgets may sound exciting because they are quick and efficient, but they don't do the hard work of fixing the website in a way that will respond to a screen reader.
From a legal perspective it is important to understand that we are still seeing litigation filed against websites with widget and overlays. I caution defendants to make sure that overlays and widgets are not providing a false sense of security that your website is quote fixed from an accessibility standpoint without understanding some of the issues that may be created through the use of these tools. In these lawsuits, users are still allegedly experiencing barriers accessing a website with widget and overlays.”
ADA Site Remediation Recommendations
While accessibility is an ongoing process, we recommend taking the following steps to get started to assess and enforce digital accessibility for your brand:
- Identify public-facing content and channels;
- Work with a blind user tester to complete your top user tasks on all sites and apps
- Ensure that videos have closed captions
- Run automated tests on your top 10 most-visited pages
- Create a remediation plan and organizational roadmap that addresses accessibility within your organization, including timeline and costs; and
- Publish a legally reviewed accessibility statement on your site and distribute an internal accessibility policy within your organization to guide decision making and accessibility across the organization; and
- After completing remediation, continually test, monitor, and document accessibility.
Don't wait for an ADA lawsuit. Take the above steps to mitigate your chance of receiving one. You'll also be better prepared for any changes that might go into force with the new US administration.
We don't know what the future might hold, there have been some early indicators that digital accessibility will be a priority of the Biden administration.
“Within just a few hours of President Biden taking over the White House they issued an accessibility statement and a revamped website with accessibility in mind. I think that shows us the direction that this administration is going to go with accessibility, whether we see that in the form of federal legislation or through the DOJ resuming enforcement actions. I think both possibilities are possible.”
A Holistic Approach is Best for Web Accessibility
While many think of them all as separate entities, the reality is that data security, privacy, and digital accessibility overlap.
In their January 29th blog post, Beckage, a law firm that focuses only on technology, data privacy, and data security matters, summarizes it best saying,
"From our experience, a holistic approach to digital accessibility that understands how to bring together various stakeholders and decisions makers from throughout the organization as accessibility champions is the best way to operationalize accessibility."
This blog post summarizes our recent webinar, How to Optimize your Digital Accessibility Program to Defend against ADA Lawsuits. Download the slides here.
Need help ensuring that every aspect of your site is up to WCAG 2.1 standards? Get in touch.
This blog contains quotes from our webinar speaker but the information is for educational purposes only. It not intended nor should it be considered legal advice for any specific matter and does not create an attorney-client relationship. The recipient of this publication should not rely on its contents for any specific legal purpose. If legal advice is required for any specific matter discussed herein, please consult with qualified legal counsel in your jurisdiction.
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